Marriage Void Under Section 5(i) HMA Does Not Preclude Discretionary Grant of Permanent Alimony Under Section 25

In brief

The question

1. Whether the Appellant proved a valid customary divorce to satisfy the condition under Section 5(i) of the HMA

The court held

The Court upheld the Family Court’s judgment declaring the marriage null and void under Section 11

It also directed

The Respondent was directed to pay arrears of maintenance at ₹9,000 per month from the date of filing the appeal until the judgment date, and further directed to pay ₹9,000 per month as permanent alimony under Section 25 of the HMA starting from the date of the judgment

01Facts

The parties married on 21.06.2013 according to Hindu rites

p. 2

The Respondent (husband) was a widower; the Appellant (wife) had been previously married but claimed a customary divorce through a Panchayat

p. 2

The Respondent filed a petition under Section 11 of the Hindu Marriage Act (HMA), 1955, seeking a declaration of nullity on the ground of the subsistence of the Appellant’s first marriage

pp. 2-3

The Family Court allowed the petition, declaring the marriage void ab initio

p. 3

The Appellant challenged this, asserting the Respondent knew of her status (citing RW-2’s testimony) and invoking Section 23(1)(a) of the HMA to argue the Respondent could not benefit from his own wrong

p. 3

02Issues

i.1. Whether the Appellant proved a valid customary divorce to satisfy the condition under Section 5(i) of the HMA

pp. 9-10

ii.2. Whether the Principle of "taking advantage of one's own wrong" under Section 23(1)(a) of the HMA applies to marriages that are void ab initio

p. 11

iii.3. Whether a spouse in a void marriage is entitled to maintenance and permanent alimony under Sections 24 and 25 of the HMA

p. 12

03Law Applied

Section 5(i) of the HMA, which prohibits marriage if either party has a spouse living, and Section 11, which renders such marriages void

p. 5

Section 29(2) saves customary rights to divorce, but per Bhimashya v. Janabi and Yamanaji H. Jadhav v. Nirmala, such customs must be specifically pleaded and strictly proven to be ancient, certain, and reasonable

pp. 6-8

Courts have the discretion to grant alimony under Section 25 even if a marriage is declared void under Section 11 (Sukhdev Singh v. Sukhbir Kaur (2025))

p. 4, 12

Provisions in the judgment · 9 · Linked ones open on LawLens

Limitation Act, 1963 Section 5

Code of Civil Procedure, 1908 Section 151

Hindu Marriage Act, 1955 Section 4 Section 5 Section 11 Section 23 Section 24 Section 25 Section 29

04Reasoning

The Court found the Appellant failed to provide cogent evidence of a valid custom of Panchayat divorce in her community; mere testimony that the Respondent knew of the prior marriage (RW-2) did not constitute legal proof of dissolution

p. 10

Regarding Section 23(1)(a), the Court reasoned that the principle of "wrongdoing" cannot validate a marriage that is non est (void) from inception due to bigamy

p. 11

Applying the discretionary powers recognized in Sukhdev Singh, the Court held that despite the marriage being void, the parties' cohabitation and the Appellant's indigence justified financial support due to the Appellant’s status as a destitute woman living in an old age home and the Respondent’s stable financial position as a retired regular pension holder

pp. 12-13